Protecting your intellectual property in the event of a no-deal Brexit

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27 September, 2019

With negotiations between the parties reaching a stalemate over recent weeks, it is becoming more likely that the United Kingdom (UK) will leave the European Union (EU) on 31 October 2019 without a formal deal in place setting out the terms of its withdrawal. Unsurprisingly, this only adds to the level of uncertainty across the UK and EU as to precisely what trading relationship both parties will have following Brexit. In light of this, Government departments are frantically attempting to ensure that appropriate measures are in place in order to prepare for all eventualities.

Intellectual property (IP) law has become harmonised throughout the European Union - should the UK leave without a formal deal in place, this would raise significant questions as to the level of protection that UK businesses will have throughout the EU for previously registered and unregistered IP. Over the last couple of years, the Intellectual Property Office (IPO) (which deals with registrations of IP within the UK) has published a series of technical notices and guidance for businesses in relation to how each aspect of IP will be affected in the event of a no deal Brexit. Below we will summarise the guidance provided by the Government and how the same may affect your business (noting of course that there will continue to be an element of uncertainty as to the precise terms of any exit for many months to come).

Copyright

Copyright law is harmonised throughout the EU and protects original artistic, musical, literary and dramatic works, in addition to films, sound recordings and broadcasts. Generally, there is no formal registration process in place to protect copyrighted works, rather once the works have been created, they are automatically protected providing that they are unique. However, there are a series of Regulations and Directives in place that provide added protections for UK businesses throughout the EU, such as those that own databases, provide satellite broadcasting and other bespoke goods and services. Post-Brexit, it is the UK's intention to implement legislation to only protect existing rights within the UK, which leaves in doubt whether UK businesses will continue to be able to protect their copyrighted works throughout the EU. However, by virtue of the Berne Convention and TRIPS Agreement, all signatory countries are required to protect copyrighted works to a minimum standard. Post-Brexit, the UK will remain a signatory to these treaties, which will provide some (albeit limited) comfort that copyrighted works will continue to be protected throughout the EU.

Trade marks

Trade marks commonly take the form of words, logos, sounds and in some instances, shapes. The benefit of having a trade mark in place is that it helps protect your business' unique goods and services from exploitation by your competitors. Currently, businesses can register a UK trade mark at the IPO and an EU trade mark (EUTM) with the EUIPO. Having an EUTM in place affords substantial protection (and ability to enforce) against misuse of the same throughout EU member states. In the event that the UK leaves without a deal, all existing EUTMs will cease to provide protection in the UK. To combat this, the Government plans to create a comparable UK trade mark which will ensure that the holder of a registered EUTM is provided with a comparable UK national trade mark. Businesses will have the opportunity to opt out of this scheme, and the new trade marks will be registered at no further cost, providing that the original EUTM application is at least pending on exit day (i.e. by 31 October 2019).

Patents

A patent is an exclusive right granted for an invention, providing that it is new, inventive and unique to existing patented goods. Patents are particularly prominent in the pharmaceutical sector, protecting against the replication of ingredients used in medicinal products. In the event of no deal, the Government has outlined an intention to maintain its current systems and processes, as far as is possible. Businesses will continue to be able to apply for UK patents at the IPO; the UK will also continue to be a participating state in the European Patent Convention (of which, membership of the EU is not required), therefore businesses will also be able to apply for and enforce European patents across Europe. However, changes are planned to the bespoke Supplementary Protection Certificate (SPCs) system that is in place within the UK, which is currently based on EU law. Whilst the registration of SPCs will not significantly change, the enforcement of them will no longer fall within the jurisprudence of the Court of Justice of the European Union, but instead the UK's courts. As a result, there will likely be uncertainty as to the precedence of existing and future EU case law in the area.

Designs

Designs protect the appearance of the whole or part of a product resulting from the features of, in particular, its lines, contours, colour, shape, texture, materials and ornamentation. As with trade marks, in the event of a no deal Brexit, all current registered community designs (RCDs) granted by the EUIPO and unregistered community designs (UCDs) will no longer provide protection in the UK. Holders of registered or pending RCDs will be provided with an equivalent UK right on exit day, which will continue to afford protection throughout the UK. Throughout the EU, businesses will continue to be able to obtain registration via an application to the EUIPO, which will grant protection within the remaining member states. The Government is also planning to introduce the UK supplementary unregistered design, which will continue to provide rights to the holders of unregistered designs in the UK.

Protecting your businesses intellectual property in the event of no deal

As it is becoming more likely that the UK will leave the EU without a deal on 31 October 2019, businesses need to ensure that their IP will continue to be adequately protected. Whilst it remains uncertain what trading arrangement will be in place following Brexit, based on the Government's guidance it can be seen that it is taking some active steps to protect the IP of UK businesses going forwards. In the meantime - particularly in relation to domestic registrations of trade marks, patents and designs - businesses will likely see limited changes to the systems that are already in place. However, as EU trade marks, patents and designs will likely no longer be enforceable in the UK, should you wish to ensure protection for your IP throughout the UK and the EU post-Brexit, we would recommend that you continue to register your IP separately where appropriate.

For more information contact John Pickervance in our Commercial department via email or phone on 0333 207 1134. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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